signature

from Wikipedia, the free encyclopedia
Signature of Benjamin Franklin
Handwritten signature by Stechinelli from the 17th century.
Japanese name stamp (Hanko)

Signature (also signature , from Latin signatum "the drawn" to signum " sign ") is the handwritten , personal signature on documents by a natural person with at least the family name . The signature is necessary for the validity of legal transactions that require at least the written form . “Signature” is a loan translation from the Latin sub-scriptio to sub “under” and scrībere “to write”.

General

If the required signature is missing on documents or if it is invalid for certain reasons, these documents have no legal effect, contracts are accordingly void . Even a good faith in the authenticity of signatures does not enjoy any legal protection, so that invalid or forged signatures do not lead to legally effective contracts.

Historical development of signature and signature

Historically, the use of the signature in legal acts probably goes back to the seal .

Signatures can be found among documents as early as the early Middle Ages , such as the Ostarrîchi certificate from Emperor Otto III. from 996. The scribe writes the monogram under the text, the ruler signs with a dot by his own hand ( autograph ). Signatures can be found beyond a pure symbol such as the stonemason's mark from the Renaissance onwards . In painting, for example, as "ops fec" (Latin opus fecit "the work has done") with naming as the author of an artist on his work, or as a house brand . In the Baroque era, this signature becomes proof of identity, but also an identification symbol in the sense of a personalized trademark, which puts uniqueness as a name sign over the legibility of the name ( autograph ). Even today, a show of hands is valid for business purposes instead of a full signature, provided it is notarized .

While handwritten signing in front of witnesses has been legally binding in Europe since the beginning of modern times , the stamped seal ( Chinese seal 印 , yìn , Japanese Hanko 判 子 ) is still the binding, legally valid signature in East Asian cultures . Signature stamps are also used in other countries or institutions.

Modern data processing requires new legally binding forms of a signature in the sense of a personal expression of will, the electronic signature . The attempt to make the signature a personal characteristic again in electronic communication media has produced the signature , a short section of text under e-mails and Usenet posts. A signature on a writing tablet without an electronic signature, on the other hand, does not meet the legally required written form, according to a judgment of the Munich Higher Regional Court.

Legal Aspects

This paragraph shows the situation in Germany , Austria and Switzerland . Help us to describe the situation in other countries.

Germany

According to German civil law , the personal signature under a text preserves both the written form required by law in Section 126 (1) of the German Civil Code ( BGB ) as well as the voluntary - i.e. without legal requirement - written form as well as the documentary nature of private documents in accordance with Section 440 ZPO . The purpose of the signature is to make the issuer of the certificate recognizable and to guarantee its authenticity (see also forgery of signatures and transfer fraud ). According to jurisprudence, such a signature is considered to be unique and as an expression of the will , in legal practice especially in the case of declarations of intent , certifications and proof of identity . Another essential feature of a signature is that it cannot be easily copied by third parties.

Legally, there are two types of signature:

  • On the one hand, there is the handwritten lettering of the full family name, whereby the first name can be placed in front, but is not necessary for the signature to be complete. A signature with only the first name, as it sometimes occurs abroad, is generally not sufficient, unless the person is generally known by their first name, such as a religious dignitary. The first name and the first letter of the surname or just the first letter of the last name are also invalid; these are only hand signals like the paraphs or the "three little crosses". Hand signals can only be legally valid through notarial certification ( Section 126 (1) BGB).
  • Facsimile is the copied name reproduction by machine or electronic duplication or by stamping for mass use. The mere reproduction of a signature by way of the facsimile is not a handwritten signature and is therefore legally ineffective as a form defect in contracts that require the written form .

Legibility requirements

The personal name must be recognizable as a name, at least hints of letters must be recognizable, otherwise the characteristic of a font is missing. Writing are all signs that are intended to make any thought content legible for others. However, full legibility of a signature is not required. If it is illegible, the signature must have at least an individual character. The characters must contain individual individual features. Lines drawn vertically or diagonally upwards or downwards, wavy lines or curved lines are not legally effective. What is required, but also sufficient, is individual lettering that sufficiently identifies the identity of the signatory, is unique, has corresponding characteristic features and is a representation of a name. The legibility of the first name alone is not enough if the surname is completely missing in the signature.

The BGH has summarized the conditions that must be placed on a signature as follows: “A signature presupposes a structure consisting of letters from a common script that need not be legible. What is required, but also sufficient, is the presence of individual lettering that sufficiently identifies the identity of the signer, which is unique, has corresponding characteristic features, represents a representation of a name and shows the intention of a full signature. "The question of whether and to what extent individual letters - even if only hinted at - must be recognizable, because otherwise the characteristic of a script is missing. If only one letter is recognizable and no sufficient individual features emerge, this does not meet the requirements for a signature. If a declaration is signed with a show of hands that only illustrates one letter, or with a sequence of letters that appear recognizable as a deliberate and intentional name abbreviation, there is no name signature in the legal sense. Whether a character represents a signature or just an abbreviation (hand sign, paragraph) is judged by its external appearance; a generous yardstick is to be applied, provided authorship is guaranteed. If the authenticity of the signature is established according to § 440 ZPO, then the writing above the signature has the presumption of authenticity.

Civil law requirements

The written document is to be signed by the exhibitor himself by signing his name or by a notarized hand sign ( Section 126 (1) BGB). In the case of a contract, the parties involved must sign the same document ( Section 126 (2) BGB). The documents must contain the entire legal transaction, signatures must spatially complete the text of the document - they are always below the text. If the law prescribes the written form for a declaration, § 126 sentence 1 BGB only requires that the certificate is personally signed by the exhibitor. After that, the text does not need to be finished when the signature is made. The declaring party can also sign the paper blank; in this case, the written form is preserved when the certificate is completed.

The signature must spatially complete the text of the document and must therefore not be a "heading". The purpose of the law is that the person signing has also read the preceding text and for this reason recognizes the content of the document as binding for those involved with his signature. With the signature, the undersigned expresses the absolute will to take full responsibility for the content of the pleading. A "headline" at the top, as is the case with the transfer forms that are temporarily used by credit institutions, is just as insufficient as "side letters", because both do not fulfill the function of a signature to complete the document text spatially and temporally, because they are not even suitable in terms of their external appearance are to express acceptance of responsibility for the text on the document.

The signature with a pseudonym is legally binding and permissible, provided that the person to be considered as the exhibitor is known without a doubt, or with part of a double name. If the artist name is signed, then the legal written form is sufficient and the authorship is preserved. Signing with a family name , a title , a legal status or the first letters, the initials (so-called paraphs ) are not a signature. A writing aid by guiding the hand of the writer does not make the resulting signature invalid, even if the signature then more closely resembles the writing of the assistant, as long as it is guaranteed that the "signer" actually wants to sign.

The abbreviation “ signed ” ( drawn ) is usually used when a handwritten signature is dispensed with and only the (printed) name of the person signing follows. The abbreviation "signed" means: "In the original, the signature follows, which is only shown here as a printed name". Corresponding letters often contain additional information such as "This letter was generated automatically and is also valid without a signature" . Both variants are usually only common in large companies or public authorities. This sentence is not sufficient for the written form, unless the law permits exceptions in mass traffic ( Section 793 (2) sentence 2 BGB, Section 13 sentence 1 AktG , Section 3 (1) sentence 2, Section 39 (1) sentence 1, Section 43 (4 ) of the Insurance Contract Act ). On the other hand, such a sentence is sufficient in text form according to Section 126b BGB, according to which the information function of a written declaration comes to the fore and a handwritten signature is waived.

Even a forged signature is formally valid; however, it does not bind the bearer of the name, but rather the forger , analogous to Section 179 BGB.

Signatures from authorized signatories and authorized representatives

The abbreviation i is often used in front of signatures under letters . A. ( on behalf ). It is intended to make it clear that it was not the person responsible who signed, but an authorized representative (with authority: for authorities for “representation”).

So that third parties can recognize a legal representative as an authorized representative of a company, he signs with the addition “in power of attorney”, “on behalf” or “i. V. "/" I. A. "( § 57 HGB ). According to Section 51 of the German Commercial Code (HGB), the authorized signatory must also add an addition to his name that suggests the power of attorney. However, as a mere regulatory rule, these additions do not render those legal transactions entered into without this addition ineffective.

Signature samples or directories with signature samples from authorized signatories are exchanged between companies if there is a permanent business relationship in which the contractual partners have to assume that the signatories change frequently ( bank powers of attorney in banking).

Legitimation checks

Legitimation checks are intended to enable a signature to be compared with the signature on an official identity document (ID card or passport) and aim to prove that the signatures match in order to determine the legally binding nature of a document. In the banking sector in particular, such legitimation checks are required by law, from a tax ( Section 154 AO ) and from a money laundering perspective ( Section 1 (3) in conjunction with Sections 11 and 12 of the GwG ). The Money Laundering Act understands “identification” to mean establishing the name on the basis of an identity card or passport as well as the date of birth, the address and determining the type, number and issuing authority of the official identification.

Legitimation checks are intended to ensure the authenticity of the signatures by means of a visual comparison and provide evidence of any authorization to represent companies. In the case of signature authentication, notaries must also check whether the person named in the authentication note and the person making the declaration are identical. The certification only relates to the authenticity of the signature and the verification of any authorization to represent. According to § 21 BNotO, this is issued after a notarial inspection of a register in the form of a certificate of authorization to represent. According to Section 32 Paragraph 1 Clause 1 GBO , authorization of representation entered in the commercial, cooperative, partnership or association register as well as the existence of legal persons and companies can be confirmed by a certificate in accordance with Section 21 Paragraph 1 BNotO. According to sentence 3 of this provision, evidence can also be provided by means of an official register printout or a certified copy of the register.

Signatures that deviate from sample signature are a difficult subject. It is recognized that changes in the signature image can occur over time. If there are only minor deviations, this is not a problem; In the case of larger deviations from the existing sample signature, however, there may be a risk of forging a signature, which is just about to be discovered by a legitimation check. Credit card companies regulate in their terms and conditions that the signature when using the card must correspond to the signature on the card and a different signature does not change the liability of the cardholder for the fulfillment of his obligations with the card. It is at the discretion of the person examining the signature whether he or she recognizes a signature as coinciding with the signature on the identification document or not. In order not to get into trouble, everyone must, in their own interest, adhere to the sample signature they have provided for the entire duration of the identification document. However, signatures on identity documents such as ID cards or passports are not considered to be original signatures.

Litigation requirements

In the extrajudicial area, a fax is not sufficient for the written form requirement of § 126 BGB. The written form requirement for transmission is not met with a declaration of intent by fax because - although an original exists - the formal receipt of the declaration of intent is missing. The written form is therefore not guaranteed for guarantees sent by telex or fax . Even the " digital signature " introduced by the Signature Act does not meet the requirement of a "handwritten signature".

However, a fax is sufficient for the court's requirements for a specific written submission ( Section 130 No. 6 ZPO). This only applies if a signed original has been faxed. A pleading of appeal personally signed by the legal representative is also formally effective if it is not faxed in the "normal" way but is sent electronically to the appellate court as a computer fax with a scanned signature. This represents a merely external (technical, but not content) change in the defining document authorized by the legal representative with his own signature. The purpose of the written form, to ensure legal security and in particular the reliability of the input, can also be used in the case of such electronic transmission be granted. The only decisive factor for assessing the effectiveness of the electronically transmitted document is the physical document issued at the request of the legal representative at the place of receipt (court).

Public law

In the case of regulatory letters from authorities ( administrative files ), a signature is not required (cf., for example, Section 37 (5 ) of the Federal Administrative Procedure Act (VwVfG); the federal states' administrative procedural laws also contain corresponding regulations); Even if, as an exception, written form is required for dealing with authorities, no signature is required, just the name of the head of the authority or one of his employees. If the copy sent to the person concerned contains the name of the signatory, this is a proper written administrative act. Administrative acts can be issued in writing, electronically, orally or in some other way (Section 37 (2) sentence 1 of the Administrative Procedure Act).

copyright

Signatures are not protected by copyright (see legal protection of characters ).

Austria

In Austria, the requirements for a signature (at least when dealing with authorities) were laid down by the Administrative Court in 1979 : “The signature is a structure made up of letters from a common script, from which a third party who knows the name of the person signing can still read this name from the typeface . It is not required that the signature be legible. However, it must be individual lettering that sufficiently identifies the identity of the person signing, has the corresponding characteristic features and is the signature of a name. "

Switzerland

Extract from the Code of Obligations , Art. 14–15 OR:

c. signature
1 The signature must be written by hand.
2 A mechanical replica of the handwritten handwriting is only recognized as sufficient where it is customary to use it in trade, in particular where it is a question of the signature on securities that are issued in large numbers.
2bis A handwritten signature is equivalent to a qualified electronic signature based on a qualified certificate from a recognized provider of certification services within the meaning of the Federal Act of December 19, 2003 on the Electronic Signature. Deviating legal or contractual regulations are reserved.
3 The signature is only binding for the blind person if it is authenticated or if it is proven that he knew the content of the document at the time of signing.
d. Replacement of the signature
If a person cannot sign, it is permitted, subject to the provisions on the bill of exchange, to replace the signature with a certified hand sign or have it replaced with a public notarization.

Scanned signature

In a ruling by the Federal Supreme Court in August 2015, the Federal Supreme Court made it clear that a scanned document with a signature does not serve as legally valid evidence but must be in the original. The Federal Supreme Court holds:

“It is generally accepted that only the findings made on the original can substantiate a positive statement of authorship and that proof of the authenticity of a photocopy is not possible [...]. Non-originals only contain pictorial representations of writing and there are no sufficiently reliable methods to prove that the writing contained therein has been reproduced unchanged and in full; It must therefore remain open whether a corresponding original ever existed in the form shown. In the case of non-originals, there are elementary information deficits in the characteristics of the line quality, printing, the flow of movement and the direction of movement, the analysis of which and matching characteristics are indispensable for a positive statement of authorship. The possibilities of finding out when assessing non-originals are therefore limited to a tendency statement [...]. ”( Federal Court, judgment of August 31, 2015 : BGer 9C_634 / 2014 of August 31, 2015 ).

In the current legal situation, despite the trend towards paperless offices, the only option left for documents with a potentially high value in dispute is to keep the original documents.

Signature on a touch screen

According to an expert opinion by the University of St. Gallen , the signature with a pen on a digital touchscreen can at least be qualified as legally sufficient if it contains information that is comparable to the classic paper signature. This is particularly the case when the signature has a sufficiently high resolution and the compressive strength is also recorded.

For deliveries by Swiss Post , receipt must be confirmed on a signature pad. The Federal Supreme Court and the Post do not agree on whether this meets the legal requirements. According to the assessment of the Federal Supreme Court, the "pixel pattern" is not sufficient because the resolution of the typeface is so deep that the individual pixels can be recognized. The Federal Council, however, shares the opinion of the Post and sees no need for legislative action.

Collect signatures

In the field of politics, signatures are collected during signature campaigns in the sense of an expression of opinion in order to emphasize a political demand. The signature lists, which contain the names, addresses and signatures of as many citizens as possible, are then handed over to political decision-makers with high publicity. While such signature lists are legally non-binding in Germany, a signature is provided for the referendum provided for in Austrian constitutional law .

In addition to the archival exploration of autographs that's collecting of autographs more or less famous people a widespread hobby.

Location

In contracts, forms or letters, the prefixed location is sometimes common, but it is legally only necessary for bills of exchange and checks .

See also

literature

Signing of the Peace of the Pyrenees on the Isla de los Faisanes
  • Tobias Burg: The signature. Forms and functions from the Middle Ages to the 17th century . LIT, Münster et al. 2007, ISBN 978-3-8258-9859-5 (for the signature of works of the fine arts).
  • Angelika Seibt: Signatures and Testaments - Practice of forensic written examination . Beck, Munich 2008, ISBN 978-3-406-58113-7 .

Web links

Commons : Signatures  - collection of images, videos and audio files
Wiktionary: Signature  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Munich Higher Regional Court, judgment of June 4, 2012, file number 19 U 771/12
  2. ^ Wilhelm Schneider: The use of writing tablets in right-hand traffic is not unproblematic. Higher Regional Court of Munich, June 29, 2012, accessed on July 5, 2012 .
  3. ↑ BAG, judgment of December 5, 1984, in AP No. 3 on § 72 ArbGG 1979
  4. ↑ a b See BGH NJW 2003, 1120.
  5. ↑ MüKo-BGB / Einsele, § 126 Rn. 16.
  6. ↑ BFH NJW 1999, 2919
  7. ↑ so already RGZ 119, 62, 63; BGH NJW 1994, 2097; BGH NJW 1962, 1505, 1507 and BGH NJW 1976, 966, 967
  8. ↑ BGH NJW 1987, 1334
  9. ^ Paul Merkel: The document in German criminal law . 1902, p. 121
  10. ↑ BGH NJW 1982, 1467
  11. ^ Gerhard Sadler, Administrative Enforcement Act / Administrative Delivery Act: Commentary , 2010, p. 37 with further evidence
  12. ↑ BGH NJW 1987, 1334; Düsseldorf Higher Regional Court NJW-RR 1992, 946
  13. ↑ BGH, judgment of November 15, 2006, Az .: IV ZR 122/05
  14. ↑ BGH NJW 1982, 1467, 1467
  15. ↑ BGH NJW 2005, 3775
  16. ↑ BGH NJW 2005, 3775
  17. ↑ BGH NJW 1957, 137
  18. ↑ z. B. BGH NJW 2005, 2086, 2087 for process documents
  19. ↑ BGHZ 113, 48, 51 f.
  20. ↑ BGH NJW 1992, 829, 830
  21. ↑ BGH NJW 1996, 997
  22. ^ BGH NJW 1967, 2310
  23. ↑ BGH NJW 1981, 1900, juris Rn. 15th
  24. ↑ Palandt (commentary on the BGB), § 126b, marginal number 1
  25. ↑ cf. e.g. BGH NJW 1997, 3169
  26. ^ BGH WM 1957, 883; BGH WM 1993, 496
  27. ↑ BGHZ 144, 160, 165; BGH, decision of January 14, 2008, Az .: II ZR 85/07
  28. ^ Peter Badura: The form of the administrative act . In: Walter Schmidt-Glaeser (Hrsg.): Festschrift for Boorberg-Verlag . 1st edition. Boorberg-Verlag, Stuttgart 1977, p. 205 ff . ( uni-muenchen.de [PDF]).
  29. ↑ BGH NJW 1984, 2533
  30. ↑ Administrative Court, Az .: GZ 1817/78
  31. ↑ Expert opinion on the legal force of the signature on a touchscreen , Research Center for Information Law, University of St. Gallen, July 4, 2016
  32. ↑ Annual Report of the Federal Supreme Court 2012 p. 11, February 11, 2013
  33. ↑ 2014 Annual Report of the Audit Commissions and the Audit Delegation of the Federal Parliament , p. 5264, January 30, 2015
  34. ↑ § 1 No. 7 Bill of Exchange Act
  35. ↑ § 1 No. 5 Check Act